[00:00:04] Speaker 06:
So you all are splitting your time 15 and 15.

[00:00:09] Speaker 06:
Okay, Mr. Nitz.

[00:00:12] Speaker 06:
The first case this morning is 153086, Hellman versus DVA.

[00:00:17] Speaker 06:
Whenever you're ready, sir.

[00:00:18] Speaker 07:
Thank you, Chief Judge Prost, Judge Clevender, Judge Chen.

[00:00:22] Speaker 07:
May it please the court.

[00:00:24] Speaker 07:
I'd like to begin today with the Appointments Clause defects in the statute.

[00:00:27] Speaker 07:
And then I'll turn to explain why section 713 must be invalidated in a whole.

[00:00:33] Speaker 07:
In the history of our nation, no statute has ever done what Section 713 purports to do, give a mere employee unreviewable authority to overturn a cabinet secretary.

[00:00:48] Speaker 07:
And there's a reason why.

[00:00:50] Speaker 07:
The appointments clause doesn't allow it.

[00:00:53] Speaker 07:
Section 713 makes the VA secretary's removal and disciplinary decisions appealable to the MSPB, but it requires an administrative judge

[00:01:03] Speaker 07:
to hear and decide that appeal.

[00:01:06] Speaker 07:
And it makes that decision final.

[00:01:09] Speaker 07:
There's no board review.

[00:01:12] Speaker 06:
Can we, speaking only for myself, I prefer if you maybe started talking about some of the severability or other questions that contained in your argument.

[00:01:21] Speaker 02:
Absolutely, Your Honor.

[00:01:23] Speaker 02:
But before you get there, just a quick preliminary question.

[00:01:27] Speaker 02:
If there had been a review provision to the MSPB,

[00:01:31] Speaker 02:
itself from the AJ, but then no further review, no judicial review.

[00:01:38] Speaker 02:
Would that have been constitutional?

[00:01:40] Speaker 07:
As section 713E2 is written.

[00:01:44] Speaker 02:
No, I'm asking you a hypothetical.

[00:01:47] Speaker 07:
Not necessarily, Your Honor.

[00:01:49] Speaker 07:
Why not?

[00:01:50] Speaker 07:
Because even when subject to MSPB review, administrative judges would remain inferior officers.

[00:01:58] Speaker 02:
But aside from that, what if instead of hooking up the review from the VA's termination decision to the AJ, what if it was just to the MSPB itself?

[00:02:16] Speaker 02:
So if the MSPB itself reviewed the secretary's removal decisions.

[00:02:20] Speaker 02:
Right.

[00:02:20] Speaker 02:
And then there was no judicial review.

[00:02:22] Speaker 02:
Would that be constitutionally?

[00:02:24] Speaker 02:
Valid?

[00:02:24] Speaker 07:
It would cure the appointments clause problem, because the board members themselves are appointed by the president with the rise of the sentence.

[00:02:31] Speaker 00:
Does the due process clause of the Constitution require appellate review in this court?

[00:02:36] Speaker 00:
I think that's the question that Judge Chen's asking you.

[00:02:40] Speaker 07:
Article 3 requires appellate review in this court.

[00:02:43] Speaker 00:
What do you mean, Article 3?

[00:02:45] Speaker 00:
Can the Congress provide that there's no access to the court?

[00:02:49] Speaker 07:
Not for constitutional claims like the ones that Ms.

[00:02:52] Speaker 07:
Hellman is raising here.

[00:02:54] Speaker 07:
Congress can certainly, in some sense, circumscribe the authority of the courts to review perhaps factual questions.

[00:03:03] Speaker 07:
I believe this court's decision, and Riley spoke to that.

[00:03:05] Speaker 07:
But to completely foreclose review of the constitutional claims, that wouldn't be permissible.

[00:03:11] Speaker 07:
In section 713, E2 actually doesn't do that.

[00:03:15] Speaker 07:
The text of that provision simply says that the decision of the administrative judge.

[00:03:20] Speaker 02:
Okay, so this goes to whether courts have jurisdiction to cure constitutional challenges.

[00:03:26] Speaker 02:
Yes.

[00:03:27] Speaker 02:
I guess I'm just talking about the more ordinary case where someone gets terminated and then hypothetically went directly to the MSBB itself.

[00:03:38] Speaker 02:
The MSBB say it affirmed it.

[00:03:41] Speaker 02:
But there was no provision for any judicial review.

[00:03:44] Speaker 02:
In fact, it was restricted to the MSPB as being the final decider or reviewer.

[00:03:51] Speaker 02:
That structure itself would be constitutional.

[00:03:54] Speaker 02:
At least there wouldn't be an appointments clause problem.

[00:03:56] Speaker 02:
There wouldn't be any other problem in terms of limitations on reviewability.

[00:04:03] Speaker 07:
No, it would not be an appointments clause problem.

[00:04:06] Speaker 07:
Whether or not the statute foreclosed review by the courts

[00:04:10] Speaker 07:
would depend on how clear Congress was in providing that and certainly it's entirely within Congress's realm to foreclose review of some questions.

[00:04:22] Speaker 07:
I don't think the court ultimately needs to decide how far Congress's authority extends.

[00:04:27] Speaker 07:
in that respect?

[00:04:28] Speaker 06:
Why not?

[00:04:29] Speaker 06:
I mean, we're talking about various problems with the statute as written, at least in your view, and with respect to the Appointments Clause, it has to do with final word by the AJs.

[00:04:40] Speaker 06:
So now we're looking at questions, if we would agree with you on the Appointments Clause matter, we're looking at how to restructure, what, if anything, we have authority to restructure.

[00:04:49] Speaker 06:
So one of those arguments would be,

[00:04:51] Speaker 06:
that, OK, we can just impose judicial review, which Congress left up.

[00:04:57] Speaker 06:
Or alternatively, if we're going to try to save the statute through severability, whether we could sever just the portion that doesn't allow for MSPB review, but not get rid of the sub silencio kind of, they say.

[00:05:14] Speaker 06:
There's not going to be any review, which includes MSPB review or judicial review.

[00:05:18] Speaker 06:
So I guess I think what my colleagues may be asking is, if we have to restore, in your view, MSPB review, do we also have to restore judicial review?

[00:05:27] Speaker 07:
In my view, Your Honor, Congress hasn't stripped the courts of judicial review.

[00:05:31] Speaker 07:
At least with respect to the claims that we are raising here on the Appointments Clause.

[00:05:36] Speaker 06:
Why not?

[00:05:36] Speaker 06:
The A.J.'

[00:05:36] Speaker 06:
's decision is final.

[00:05:37] Speaker 06:
Doesn't that mean that it's not appealable or reviewable?

[00:05:40] Speaker 06:
Leaving aside the constitutional questions, like to review the Appointments Clause issue.

[00:05:44] Speaker 06:
But on the regular run of the mind cases that Judge Chen was referring to, isn't it clear that the statute is currently drafted forecloses both MSPB and judicial review?

[00:05:54] Speaker 07:
Even under the regular case not involving constitutional questions,

[00:06:01] Speaker 07:
Congress still has to be explicitly clear in its desire not to allow judicial review.

[00:06:06] Speaker 07:
In Riley, this court, and then in Lindahl, the Supreme Court, look to similar language.

[00:06:12] Speaker 06:
Well, it says the decision of an administrative judge under paragraph 1 shall be final and shall not be subject to any further appeal.

[00:06:21] Speaker 06:
How else could Congress have said no judicial review?

[00:06:24] Speaker 06:
How much clearer could it have been?

[00:06:27] Speaker 07:
There's any number of options that Congress could have suggested.

[00:06:34] Speaker 07:
It could have specifically described the extent and scope of that review with knowledge of cases like Riley and Lindahl.

[00:06:41] Speaker 07:
It could have explicitly referenced those decisions or said that Section 713 E2, the jurisdiction stripping language, was intended to foreclose even review of things like critical legal errors or substantial legal errors.

[00:06:56] Speaker 07:
Recently, the Supreme Court in Quozo was addressing language that was similar to the language here.

[00:07:03] Speaker 07:
And there, the court noted that probably the language in that case would not extend to constitutional claims.

[00:07:08] Speaker 07:
But it even went a little bit further and referenced, I think, shenanigans was the word that the court used.

[00:07:13] Speaker 07:
But noted that perhaps if the patent trial and appeal board was issuing a decision that was completely outside of its authority or

[00:07:22] Speaker 07:
based on something it didn't have statutory authority to do, that that decision would be reviewable as well.

[00:07:28] Speaker 07:
So Congress needs to be abundantly clear.

[00:07:30] Speaker 07:
It was aware of decisions like Riley and Lindahl when it passed this statute.

[00:07:34] Speaker 07:
And it would really have to make clear that it was intending to foreclose even that circumscribed limited amount of review, that those decisions allow.

[00:07:46] Speaker 00:
Well, your time is going by, partly because we've been asking

[00:07:50] Speaker 00:
jurisdictional question that has two levels to it.

[00:07:53] Speaker 00:
The one level is the Reilly level, which is, can we hear this case at all?

[00:07:57] Speaker 00:
And the other question started off with Judge Chin, which was, in the grand order of things, does the Congress need to provide judicial review, period?

[00:08:06] Speaker 00:
So it seems to me that we've moved the ball along here a little bit.

[00:08:10] Speaker 00:
You're standing on Riley and you're saying you view Riley as being on all fours with this case in terms of the jurisdictional issue and we're bound by Riley.

[00:08:18] Speaker 00:
This panel doesn't have the authority to do anything else.

[00:08:21] Speaker 00:
So assume that we have jurisdiction to hear the case.

[00:08:23] Speaker 00:
Your argument is that this statute is overwhelmingly unconstitutional.

[00:08:29] Speaker 00:
You believe it's unconstitutional as a matter of an Appointments Clause problem, and you believe it's unconstitutional in due process matter based on what happens at the AJ and the board once you get there.

[00:08:43] Speaker 00:
Let's assume, for purposes of argument only, that you're right on the Appointments Clause but wrong on the due process issue.

[00:08:51] Speaker 00:
So that the only fly in the ointment here in 713 is an appointments clause problem.

[00:08:57] Speaker 00:
That being the case, what's the remedy?

[00:08:59] Speaker 00:
Why do we have to strike the whole statute down?

[00:09:03] Speaker 07:
Yes.

[00:09:03] Speaker 07:
The entirety of section 713 needs to be invalidated because when a statute contains unconstitutional provisions, the statute must fall unless what would remain operates in a manner consistent with the intent

[00:09:20] Speaker 07:
of Congress, and that doesn't happen here.

[00:09:23] Speaker 06:
Is that really the standard under AIR and the other councils?

[00:09:27] Speaker 06:
Isn't the standard correctly stated that we have to look at the statute and say, is this closer to what Congress, would Congress have wanted the smaller piece than what it enacted rather than anything at all?

[00:09:41] Speaker 06:
Is that not the standard we should apply?

[00:09:44] Speaker 07:
That's the standard, Your Honor.

[00:09:46] Speaker 07:
When applying that standard and looking at that standard under Alaska Airlines, the court needs to consider whether the smaller piece would function in a way that's consistent with the intent of Congress.

[00:09:57] Speaker 07:
If it doesn't function.

[00:09:58] Speaker 00:
But Alaska Airlines isn't the only test.

[00:10:00] Speaker 00:
I mean, the problem we've got here is the Supreme Court has had about five opinions that deal with this problem.

[00:10:05] Speaker 00:
And they've told us, here are the rules, as I understand them, and tell me if you think I'm wrong.

[00:10:11] Speaker 00:
The rules are, once you've decided that there is an inconstitutional

[00:10:15] Speaker 00:
flying in the ointment here.

[00:10:17] Speaker 00:
OK, and we've done that for purposes of argument.

[00:10:19] Speaker 00:
Only the Appointments Clause, not the due process issue.

[00:10:22] Speaker 00:
The test is, well, we're supposed to refrain from invalidating more than is necessary.

[00:10:28] Speaker 00:
Right?

[00:10:29] Speaker 00:
That's in the Supreme Court law.

[00:10:31] Speaker 00:
Two, we have to strike out, but we can't add words.

[00:10:35] Speaker 00:
Just strike out, we can't write in words.

[00:10:37] Speaker 00:
Three, is it evident that Congress would not have enacted what's left?

[00:10:42] Speaker 00:
That's in the Supreme Court law, too.

[00:10:44] Speaker 00:
Is it evident that the Congress wouldn't have done this?

[00:10:47] Speaker 00:
D, is what's left function in a manner consistent with what Congress did?

[00:10:53] Speaker 00:
That's Alaska Airlines.

[00:10:55] Speaker 00:
And finally, would Congress have preferred what's left to no statute at all?

[00:11:01] Speaker 00:
That's a gemish.

[00:11:02] Speaker 00:
You don't disagree with any of those tests, right?

[00:11:05] Speaker 07:
I don't, Your Honor.

[00:11:07] Speaker 00:
And they're all rolled up into a gemish, into a ball.

[00:11:10] Speaker 00:
Yes.

[00:11:11] Speaker 00:
Yes.

[00:11:11] Speaker 00:
So Alaska Airlines isn't dominant.

[00:11:14] Speaker 00:
It's just there as one.

[00:11:15] Speaker 00:
Isn't it an out way?

[00:11:17] Speaker 00:
Right?

[00:11:17] Speaker 00:
Yes.

[00:11:18] Speaker 00:
OK.

[00:11:19] Speaker 00:
So why do we need to invalidate the entirety of the statute when only the problem is with the finality of the AJA decision?

[00:11:30] Speaker 07:
Two reasons.

[00:11:31] Speaker 07:
Right.

[00:11:31] Speaker 07:
Two reasons, Your Honor.

[00:11:33] Speaker 07:
The first is that

[00:11:34] Speaker 07:
There's a number of different ways that the appointments clause problem in this case could be fixed.

[00:11:40] Speaker 07:
There's a number of different proposals that have been put on the table.

[00:11:43] Speaker 07:
There was the original House version.

[00:11:45] Speaker 07:
There was the Senate version.

[00:11:47] Speaker 07:
There's, of course, the compromise resulting in the statute that now has these problems.

[00:11:52] Speaker 00:
Well, the Senate version would be easy, right?

[00:11:55] Speaker 00:
The Senate version would be easy.

[00:11:56] Speaker 00:
We would just simply take the AJ out of play.

[00:11:59] Speaker 00:
And we would erase AJ and write in board.

[00:12:02] Speaker 00:
Because the members of the board, there's no Appointments Clause problem with them, right?

[00:12:08] Speaker 00:
Am I right?

[00:12:09] Speaker 00:
Yes, there's no Appointments Clause.

[00:12:10] Speaker 00:
And so if there's no need for any judicial review, if the Congress, both Houses, had made the MSPB the stopping point, there wouldn't be an Appointments Clause problem.

[00:12:23] Speaker 07:
No, Your Honor.

[00:12:24] Speaker 07:
But both Houses didn't make that.

[00:12:26] Speaker 07:
Do you mean yes, Your Honor?

[00:12:28] Speaker 07:
Yes, there would not be an appointments clause problem if the MSPB presides over the appeal in the first instance.

[00:12:34] Speaker 07:
But both Houses of Congress didn't do that.

[00:12:36] Speaker 07:
The original House version was at will employment.

[00:12:39] Speaker 07:
And since this case has been filed, Congress has actually been considering fixes to Section 713.

[00:12:46] Speaker 07:
We cite them in our reply brief.

[00:12:50] Speaker 07:
There was actually two statutes that have been introduced, one in the Senate, which we cite in our reply brief.

[00:12:55] Speaker 07:
And then there's another one in the House,

[00:12:57] Speaker 07:
5620.

[00:12:59] Speaker 07:
And those procedures look nothing like the severability proposal that... What are we supposed to do with that?

[00:13:06] Speaker 06:
I mean, I know there's some controversy even to the extent to which we can look back at legislative history proceeding an enactment.

[00:13:13] Speaker 06:
But what are we supposed to do with subsequent actions by presumably a handful of people?

[00:13:20] Speaker 06:
Congress hasn't voted on any of these new provisions yet.

[00:13:23] Speaker 06:
We don't know if they're the mindchild of two people or 100 people.

[00:13:28] Speaker 06:
So what way are we supposed to give matters under consideration now by the Congress?

[00:13:35] Speaker 06:
I'm not clear on how we can possibly put that into the mix.

[00:13:40] Speaker 07:
There's evidence in the legislative history of those two proposals that shows that they were being motivated and were being influenced by this case.

[00:13:49] Speaker 06:
Oh, I'm sorry.

[00:13:50] Speaker 06:
Legislative history of statutes that haven't yet been enacted?

[00:13:54] Speaker 06:
Yes, Your Honor, the new proposals.

[00:13:55] Speaker 06:
One of them.

[00:13:56] Speaker 06:
But my question is, what do we do with that?

[00:13:59] Speaker 06:
I mean, what do we do?

[00:14:00] Speaker 06:
Is it real legislative history that we put in the mix the way we consider legislative history when we're talking about the legislative history of proposals that have never been enacted?

[00:14:10] Speaker 07:
It's certainly different than legislative history of a statute that has been passed.

[00:14:15] Speaker 07:
But what it shows is that there's a number of different ways to fix this problem.

[00:14:20] Speaker 07:
And the court should let Congress take the first crack at that.

[00:14:24] Speaker 00:
But what about the one of them?

[00:14:26] Speaker 00:
What does that mean?

[00:14:26] Speaker 00:
Does that mean we simply strike the whole statute down?

[00:14:30] Speaker 07:
Yes, Your Honor.

[00:14:30] Speaker 07:
Invalidate section 713.

[00:14:32] Speaker 00:
The first principle is you only take down as much as is necessary.

[00:14:37] Speaker 00:
Right?

[00:14:38] Speaker 00:
That's the first principle that governs our behavior.

[00:14:43] Speaker 00:
So Wong is what remains?

[00:14:44] Speaker 00:
So my question to you is, if there's an Appointments Clause problem, but no other, no due process, why isn't it sufficient to excise, simply remove Section 713E2 and 3?

[00:14:55] Speaker 00:
I mean, E2 and 3.

[00:14:59] Speaker 00:
E2 says that the AJ is final and no further review.

[00:15:05] Speaker 00:
Right?

[00:15:06] Speaker 00:
Yes.

[00:15:06] Speaker 00:
So we strike that down.

[00:15:08] Speaker 00:
And we say it because of the finality.

[00:15:10] Speaker 00:
And the 21-day requirement, we strike down because we say that's a backdoor way of letting the AJ become final.

[00:15:19] Speaker 00:
Because the AJ just sits on the 21-day, and that's the AJ by sitting, makes it all final.

[00:15:25] Speaker 00:
So why can't we just strike down those two provisions, honor the first principle of only getting rid of what you need to, and leave everything else?

[00:15:36] Speaker 00:
What's wrong with that?

[00:15:37] Speaker 07:
That would result in a system that is inconsistent with what Congress initially intended.

[00:15:49] Speaker 00:
It is, Your Honor, but allowing- Can we be sure that the Congress would rather have nothing, nothing, than what the statute would look like with P2 and 3 gone?

[00:16:01] Speaker 07:
Yes, we can, because that statute would require three mandatory layers of review.

[00:16:08] Speaker 07:
That would still require the MSPB to refer the case to the administrative judge in the first instance, then there would be review by the MSPB, and then some level of judicial review by this court.

[00:16:19] Speaker 07:
That's even more expansive than what Title V requires.

[00:16:23] Speaker 02:
That inquiry might be scoped down too narrow.

[00:16:26] Speaker 02:
I mean, the Act has a lot of other provisions.

[00:16:30] Speaker 02:
I mean, the Act gives the VA lots of new authorities that it didn't have before that Act.

[00:16:36] Speaker 02:
For example, you can now remove an SES employee for poor performance.

[00:16:42] Speaker 02:
You can immediately remove that employee

[00:16:46] Speaker 02:
right after the determination decision is made.

[00:16:50] Speaker 02:
And so during the entire appeal process for that employee, that person will be off the payroll, so to speak.

[00:16:59] Speaker 02:
So those are some specific advantages that if you look through the legislative history, you can tell that the thrust of what Congress was going for was to remove these people from their positions as quickly as possible

[00:17:14] Speaker 02:
recognizing there's going to be some limited appeal process.

[00:17:18] Speaker 02:
But I guess what I'm trying to figure out is your very narrow specific focus on the reviewability provision might be more of a kind of like a tail wagging the dog.

[00:17:30] Speaker 02:
So could you respond to that?

[00:17:32] Speaker 07:
Yes, Your Honor.

[00:17:33] Speaker 07:
I don't think it is the tail wagging the dog.

[00:17:35] Speaker 07:
The legislative history of the bill that was passed shows that having a final

[00:17:41] Speaker 07:
and expedited administrative review process was one of the central goals.

[00:17:45] Speaker 07:
And requiring three layers rather than just what existed over the previous two mandatory layers would be inconsistent with that objective.

[00:17:55] Speaker 06:
Wasn't one of the real goals also to get these people off the rolls as quickly as possible?

[00:18:01] Speaker 06:
And that had to have been a focal point of what they were trying to achieve here.

[00:18:05] Speaker 06:
And that's done through the work of the earlier provisions of 713, not the ones that we've been discussing this morning.

[00:18:13] Speaker 07:
That's certainly the case.

[00:18:14] Speaker 07:
But there was an emphasis on not just getting them out of federal employment, but ensuring that the administrative review process is constrained.

[00:18:23] Speaker 07:
And there's a reason that the administrative review process is constrained.

[00:18:27] Speaker 02:
But I'm right, am I not?

[00:18:29] Speaker 02:
If the court were to strike down just a couple of these little sub-provisions, then there would be this extended appeal process.

[00:18:39] Speaker 02:
But during the time of all of that extended review process, you call it a three-layer review, the SES employee wouldn't be in her position and likewise wouldn't be getting paid that SES salary during that entire review process if it took.

[00:18:57] Speaker 02:
30 days if it took three years.

[00:18:59] Speaker 02:
Am I right?

[00:19:00] Speaker 02:
Yes.

[00:19:01] Speaker 07:
That's also true under the Title V procedures as well, once an employee's been removed and that post-termination review process is ongoing.

[00:19:08] Speaker 00:
But there's another reason that- Well, if we only knock out E2 and E3, we still have a congressional mandate that the AJ has to decide the case within 21 days, right?

[00:19:20] Speaker 07:
And that might actually extend the process rather than condense it.

[00:19:24] Speaker 07:
And I know that doesn't.

[00:19:25] Speaker 00:
Well, there's a thing about that.

[00:19:26] Speaker 00:
I mean, you have a stat.

[00:19:28] Speaker 00:
The MSPB is an agency that's supposed to pay attention to what Congress says.

[00:19:32] Speaker 00:
We all know that Congress wanted this process to be quick.

[00:19:36] Speaker 00:
And so wouldn't you expect that the rule of the road in these cases, and there aren't very many of them, as the intervener points out, one of their handful of SES people that could possibly bring these cases?

[00:19:49] Speaker 00:
So when one of them pops up, I would expect the rule of the road, the MSPB, was we got to hurry up on this.

[00:19:55] Speaker 00:
Congress wanted us to move fast.

[00:19:57] Speaker 00:
And so the AJ is supposed to hop onto it and decide in 21 days, and the full board would expedite any review that came to it.

[00:20:07] Speaker 07:
Simply excising E2 and E3 would not require the MSPB to expedite review.

[00:20:13] Speaker 00:
It would only require a 21-day proceeding before the administrative judge.

[00:20:22] Speaker 00:
obligated to interpret the statutes that the Congress writes that affects its jurisdiction.

[00:20:28] Speaker 00:
And the Congress certainly here made a clear and unmistakable statement that it wanted quick process, i.e.

[00:20:39] Speaker 00:
they wanted it so quick there'd be no review.

[00:20:42] Speaker 00:
And so as I said, I would just expect the agency to try to accommodate the will of Congress.

[00:20:48] Speaker 07:
It may, but there wouldn't be any statutory requirement to do that.

[00:20:53] Speaker 06:
So you had one other point that you wanted to do.

[00:20:55] Speaker 07:
Well, I just want to say, even setting all that aside, there's another reason that the court should invalidate the statute entirely, and that's in the name of constitutional avoidance.

[00:21:03] Speaker 07:
Simply severing out some of these provisions that we've been talking about would not cure all constitutional defects in the statute.

[00:21:12] Speaker 07:
Specifically, there would be questions about whether or not

[00:21:16] Speaker 07:
And the administrative judge is an inferior officer, even when subject to MSPB review.

[00:21:21] Speaker 07:
There would be questions about whether administrative judges are appointed in.

[00:21:26] Speaker 02:
What about Landry and, I think, Raymond Lucia, these two DC Circuit opinions that seem to indicate, at least for those particular agencies, the ALJs in those agencies are not inferior officers.

[00:21:40] Speaker 01:
They're mere employees.

[00:21:42] Speaker 07:
Yes.

[00:21:42] Speaker 07:
Landry and Lucia.

[00:21:44] Speaker 07:
read Freytag, the Supreme Court case, which I'm sure the court's aware of, to require finality when determining whether someone is an inferior officer.

[00:21:55] Speaker 07:
And Landry and Lucia looked at the ALJs in those cases and said that the decisions of the ALJs were not final, absent some affirmative action taken by Landry, the FDIC, and Lucia, the SEC.

[00:22:09] Speaker 07:
And they said the inability to render a final decision

[00:22:12] Speaker 07:
is the reason that these individuals aren't officers.

[00:22:16] Speaker 07:
Freytag made clear that what mattered was the ability to take testimony, conduct trials, rule on the admissibility of evidence, and enforce compliance with discovery orders.

[00:22:27] Speaker 07:
The language in Freytag discussing finality.

[00:22:30] Speaker 02:
Well, that's what the ALJs did in Lucia and Langley, right?

[00:22:36] Speaker 02:
Yes.

[00:22:36] Speaker 02:
So I mean, you're saying the DC circuit was way off there?

[00:22:41] Speaker 07:
I wouldn't use the words way off, Your Honor, but we disagree with the way that the DC Circuit has interpreted Freight Tech.

[00:22:49] Speaker 07:
But even if the court's inclined to agree with the DC Circuit on this question, administrative judges do have the opportunity to issue the final decisions of the board.

[00:22:59] Speaker 07:
They issue an initial decision.

[00:23:01] Speaker 07:
If 35 days passes, that's the decision of the board.

[00:23:05] Speaker 07:
There is no requirement that the MSPB take any affirmative act

[00:23:09] Speaker 07:
and no requirement that the MSPB actually issue an affirmative order.

[00:23:13] Speaker 06:
You mean in instances where the losing party decides not to file a petition for review?

[00:23:18] Speaker 06:
Yes, Your Honor.

[00:23:19] Speaker 06:
Well, that's not the AJs don't have, or the MSPB doesn't have control over that.

[00:23:24] Speaker 06:
That's the moving party.

[00:23:25] Speaker 06:
I mean, that can always happen.

[00:23:27] Speaker 06:
They could have settled the case on the first day and then there'd be no AJ review.

[00:23:31] Speaker 06:
I mean, why shouldn't

[00:23:34] Speaker 06:
the constitutional event be determined and based on, at some point in the proceeding, one side may decide not to challenge a peace event.

[00:23:43] Speaker 07:
That was also true in Lucia.

[00:23:44] Speaker 07:
In Lucia, the DC Circuit emphasized that even when the losing party doesn't seek commission review, the commission still has to adopt an order, enter an order adopting the decision of the ALJ.

[00:23:56] Speaker 07:
And Lucia noted, it said, this isn't a situation where the mere passage of time makes the decision of the ALJ.

[00:24:03] Speaker 07:
the decision of the commission.

[00:24:04] Speaker 06:
So how does that work under our procedures?

[00:24:06] Speaker 06:
I mean, I don't know.

[00:24:09] Speaker 06:
If the AJ's decision is not appealed,

[00:24:11] Speaker 06:
What happens?

[00:24:13] Speaker 06:
Nothing is ordered by the MSPB.

[00:24:15] Speaker 06:
Nothing is issued.

[00:24:16] Speaker 06:
No piece of paper is issued by the MSPB.

[00:24:18] Speaker 06:
The AJ's is just out there.

[00:24:21] Speaker 07:
By regulation, the decision of the administrative judge becomes the final decision of the board.

[00:24:25] Speaker 06:
But does the board, in each individual case, do you know, put out some notice saying that your decision has become our decision because there's been no review?

[00:24:36] Speaker 06:
Or does it just

[00:24:37] Speaker 07:
I'm not sure if there's something ministerial akin to the issuance of the mandate.

[00:24:42] Speaker 00:
Something on a docket sheet when they say case closed, final?

[00:24:46] Speaker 07:
I've just been informed by our administrative council that the MSPB doesn't do anything.

[00:24:51] Speaker 07:
It doesn't put anything out there.

[00:24:52] Speaker 06:
Can I move you because your clock is running?

[00:24:54] Speaker 06:
Can I move you to a different kind of issue?

[00:24:56] Speaker 06:
which is assuming hypothetically that we were to agree on the appointments clause and we were to agree to some sort of severability.

[00:25:05] Speaker 06:
I think there's also a dispute between the parties as to what we do in this case.

[00:25:10] Speaker 06:
And I think your position, as I understand it, is if that's the way we decide to go, in this case we should vacate the AJ's decision

[00:25:19] Speaker 06:
And I don't know, even vacate the secretary's decision and go back to square one.

[00:25:23] Speaker 06:
I think the other side differs with that.

[00:25:25] Speaker 06:
So what's the rationale?

[00:25:26] Speaker 06:
I mean, if we were to decide to go that route and just sever and just cut out a few provisions in grant reviewability, why would we not be able to pick up the ball where we left off, which is the AJ's decision is now subject to appeal by the MSBB?

[00:25:39] Speaker 06:
Why would we have to wipe the slate clean?

[00:25:42] Speaker 07:
A couple reasons.

[00:25:43] Speaker 07:
Ryder entitles Ms.

[00:25:45] Speaker 07:
Hellman to have her case decided by a properly appointed officer.

[00:25:49] Speaker 07:
If the court agrees on the Appointments Clause question, then that's not something that happened here.

[00:25:55] Speaker 07:
And she's entitled to have a decision rendered in the first instance by someone who is properly appointed.

[00:26:01] Speaker 07:
So you'd want to do over by the AJ?

[00:26:07] Speaker 07:
If the court invalidates the whole thing, then it would have to go back to the VA secretary.

[00:26:14] Speaker 00:
And the decision would have to be made there.

[00:26:16] Speaker 00:
When we simply remove the finality provision, aren't we saying there's no problem with an AJ having decided this case?

[00:26:24] Speaker 00:
The problem is that the AJ's decision was given such a considerable weight of authority that it meant the AJ wasn't qualified to do that.

[00:26:34] Speaker 00:
Once we remove finality from the AJ's opinion, then it's just an AJ opinion, the way you'd ordinarily have.

[00:26:43] Speaker 07:
Right?

[00:26:45] Speaker 07:
It would be, but that still presents Appointments Clause issues.

[00:26:48] Speaker 07:
Why?

[00:26:49] Speaker 07:
Because that administrative judge would be someone who is taking testimony, conducting trials, ruling on the admissibility of evidence.

[00:26:57] Speaker 07:
And that decision, then, would become the decision of the board through the mere passage of time.

[00:27:03] Speaker 02:
So if we disagreed with you on your position that an AJ, or in every case at the MSBB,

[00:27:12] Speaker 02:
there's an appointments clause defect and we don't think there is one, we in fact think that AJ is an employee, then where are we left?

[00:27:21] Speaker 02:
Are we left with just Ms.

[00:27:24] Speaker 02:
Hellman's adverse decision in front of AJ being appealed to the MSPB?

[00:27:30] Speaker 07:
It still could be sent back to the VA secretary himself.

[00:27:34] Speaker 07:
Because why?

[00:27:35] Speaker 07:
Title 38 is not exclusive of Title 5 authority to fire someone.

[00:27:40] Speaker 07:
If the court suffers these provisions, that would result in an administrative review scheme that's much different than what Title 38 looked like when the secretary made that decision.

[00:27:52] Speaker 07:
And the secretary ought to be given the opportunity and the chance to decide between what Title 38 looks like now and Title V. Maybe we'll hear from the secretary on that.

[00:28:04] Speaker 07:
Oh, I was just going to add.

[00:28:05] Speaker 07:
Even so, that's not the sort of decision

[00:28:08] Speaker 07:
that the court can simply take the representations of counsel on.

[00:28:12] Speaker 07:
The DC Circuit in administrative cases will send cases back and require a new determination by the agency.

[00:28:19] Speaker 00:
Can I just make one point before you sit down that may preserve some ground for you on your rebuttal in case you need it?

[00:28:26] Speaker 00:
Because we haven't talked at all about your concern about the due process deficiencies in 713 once a case gets to the board, right?

[00:28:36] Speaker 00:
But I think your argument as to why we have to strike the entire statute down is enhanced, of course, if we were to decide with you that you were correct on the due process deficiencies as you see them, right?

[00:28:49] Speaker 07:
It is.

[00:28:49] Speaker 00:
And that's also a reason to- So I'm just giving you a chance to say you stand on what you say in your brief as to the due process deficiencies, right?

[00:28:57] Speaker 00:
Yes, I do, Your Honor.

[00:28:58] Speaker 07:
I'll reserve the rest of my time.

[00:29:00] Speaker 00:
That is an important issue.

[00:29:00] Speaker 00:
And I didn't want to see an argument being made by somebody that said you waived the right to discuss this on our bottle.

[00:29:06] Speaker 07:
Thank you, and I appreciate that.

[00:29:08] Speaker 06:
Thank you.

[00:29:09] Speaker 06:
All right, let's move to the other side.

[00:29:11] Speaker 06:
Mr. Freeman, you go first.

[00:29:17] Speaker 05:
May it please the court, Mark Freeman for the government.

[00:29:19] Speaker 05:
I'd like to start with Judge Chen's point a few minutes ago.

[00:29:22] Speaker 06:
I don't want to set you off, but there's one thing we didn't cover with the other side that I thought you might be the best person to ask.

[00:29:27] Speaker 06:
It's just a technical question, which is, why is subsection 5 relevant at all?

[00:29:34] Speaker 06:
I mean, isn't it correct that in every proceeding,

[00:29:37] Speaker 06:
You don't get to the AJ until somebody's been removed, i.e.

[00:29:40] Speaker 06:
put off the roles.

[00:29:41] Speaker 06:
So why do Congress have to insert anything about Section 5 in the statute at all?

[00:29:46] Speaker 05:
Your Honor, we are candidly also a little confused on that point.

[00:29:49] Speaker 05:
As you point out, in Section 7701B of the regular Title V provisions for MSPP appeals, as soon as a person is removed from federal civil service, they no longer receive their pay pending the outcome of the administrative

[00:30:02] Speaker 05:
proceeding, it may have been that this was a belt and suspenders provision.

[00:30:06] Speaker 05:
It may also have been that this was meant to make clear that the operative stopping point was the administrative judge's decision rather than a board decision.

[00:30:15] Speaker 05:
But we take the court's point.

[00:30:17] Speaker 05:
We had the same question about the statute.

[00:30:19] Speaker 06:
Thank you.

[00:30:19] Speaker 06:
Now go on to Judge Chen's point.

[00:30:20] Speaker 05:
So I just want to go to the severability issue.

[00:30:22] Speaker 05:
As Judge Chen pointed out, this statute does a lot more than provide for certain procedures in the MSPB review process.

[00:30:29] Speaker 05:
The marquee change made by this statute

[00:30:32] Speaker 05:
was that it allows the Secretary of Veterans Affairs to remove senior executives from the department for, among other things, poor performance alone.

[00:30:40] Speaker 05:
That is a change from prior law.

[00:30:42] Speaker 05:
Before this provision was enacted, a senior executive could be demoted from the senior executive service for performance, if a performance appraisal so provided.

[00:30:52] Speaker 05:
But the secretary could not, in the secretary's determination, remove the person from civil service altogether.

[00:30:59] Speaker 05:
that no one in this case has challenged the constitutionality of Congress's judgment in that respect.

[00:31:04] Speaker 05:
And there's no reason why that or many other provisions of Section 713 ought to be set aside just because there is a narrow constitutional difficulty with respect to the review of the administrative judge's decision.

[00:31:15] Speaker 06:
But under what you suggest is the way we should slice and dice the statute, it would retain afterwards judicial review as well as MSPB review.

[00:31:26] Speaker 05:
That is correct.

[00:31:27] Speaker 06:
And do we need that?

[00:31:28] Speaker 06:
And if we don't need that necessarily, why shouldn't and wouldn't we slice that up?

[00:31:35] Speaker 06:
Is it because it's harder grammatically to figure out and it would put us in a position of rewriting rather than just striking?

[00:31:43] Speaker 06:
Is that the reason?

[00:31:43] Speaker 05:
Yes, Your Honor, candidly.

[00:31:44] Speaker 05:
I agree that what Congress would prefer here, if Congress was doing this, is a scheme that

[00:31:52] Speaker 05:
allow, cured the appointments clause problem by allowing appeals to the Merit Systems Protection Board, and that would cure the appointments clause problem, and would not thereafter allow judicial review at all.

[00:32:04] Speaker 05:
That is completely constitutional for Congress to have done so.

[00:32:08] Speaker 05:
The question is just whether, consistent with the severability principles that Judge Clevenger pointed out earlier, one can get to that result by line editing

[00:32:15] Speaker 05:
Section 713E2.

[00:32:18] Speaker 00:
Changing the word AJ to board.

[00:32:21] Speaker 00:
But I mean, what that does is that puts us over in the Senate, right?

[00:32:24] Speaker 05:
That's correct.

[00:32:25] Speaker 00:
And it's the Federal Circuit saying, we like the Senate better than the House.

[00:32:30] Speaker 05:
Right.

[00:32:31] Speaker 00:
And that's not permissible, right?

[00:32:33] Speaker 05:
What the court cannot do, as Your Honor pointed out, is add words and change the legislation.

[00:32:39] Speaker 05:
So the question in severability analysis is, you tailor the remedy to the problem,

[00:32:44] Speaker 06:
you strike the provisions of... Isn't that a little silly?

[00:32:46] Speaker 06:
I mean, I understand the principle of adding words if we were to add new concepts, but what I'm suggesting to you is through adding words we're really doing.

[00:32:57] Speaker 06:
I mean, if the statute, if E2 had originally been crafted to say shall not be subject to any further appeal in the MSPB or judicial review, then we would be able to do it.

[00:33:09] Speaker 06:
So isn't this little

[00:33:11] Speaker 06:
kind of silly exercise because Congress decided to use these words where we both agree that what their intent was was X, that we can't do what we can to further their intent?

[00:33:22] Speaker 05:
I'm in a difficult position here, Your Honor, because I don't want to fight you on what I think Congress would have preferred.

[00:33:26] Speaker 05:
I think normally, I'm not in the position of standing at this podium and saying an act of Congress is unconstitutional.

[00:33:33] Speaker 05:
And normally, when people try to line edit statutes, it is my job to stand up and say, no, no, no, you don't get to add words.

[00:33:39] Speaker 05:
You just strike them.

[00:33:41] Speaker 05:
So we are hesitant to indulge that form of analysis.

[00:33:44] Speaker 05:
But I understand the point.

[00:33:46] Speaker 05:
And I don't disagree that what Congress would have wanted is to cure the Appointments Clause problem and then foreclose judicial review.

[00:33:53] Speaker 05:
Now, to Judge Clever's point earlier, it is absolutely the case that the board, we think, would be obligated to expedite these appeals.

[00:34:00] Speaker 05:
And in fact, in an uncodified portion of Section 713, this was 707B of the public law that enacted it, Congress directed the board

[00:34:11] Speaker 05:
promulgate regulations to ensure the expedited processing of these appeals and to waive any regulation that it may have in order to make that possible.

[00:34:20] Speaker 06:
But if we retain the 21 days for the AJ, which is what you're proposing we do, can't we make as reasonable an argument that that's going to lengthen the appeal?

[00:34:30] Speaker 06:
process than to curtail it?

[00:34:33] Speaker 06:
Because if I'm the MSPB and I get some crummy decision by the AJ, I don't mean crum, but some inadequate, less than adequate decision because they've only had 21 days to do it, then that 21 days may in fact result in a lengthier proceeding before the MSPB than it would if the AJ just had their normal run of the course.

[00:34:55] Speaker 06:
So why would we not strike out the 21 days to just kind of

[00:34:59] Speaker 06:
get them, you know, do what's consistent here.

[00:35:01] Speaker 05:
Right.

[00:35:02] Speaker 05:
So again, I understand the point.

[00:35:03] Speaker 05:
I think, though, that we all ought to be obliged to follow Congress's directive to provide for a very fast administrative hearing and 21 days, although very fast, consistent with the rules that the board has regulated.

[00:35:16] Speaker 05:
The board has promulgated a complex set of regulations to ensure the maximum expedited processing consistent with due process.

[00:35:23] Speaker 05:
Congress wanted that.

[00:35:25] Speaker 05:
That is, by itself, not constitutionally problematic.

[00:35:27] Speaker 05:
And there's no reason we have to.

[00:35:28] Speaker 02:
But as a practical functional matter, is 21 days just too uncomfortable to say that we can really expect a due process to occur within that time?

[00:35:41] Speaker 05:
I think absolutely, Your Honor.

[00:35:42] Speaker 02:
What if it was four days?

[00:35:45] Speaker 05:
I don't dispute that there could be a period where it is not possible to conduct a proper hearing.

[00:35:50] Speaker 05:
21 days, though, consistent with the regulations promulgated by the board,

[00:35:54] Speaker 05:
is certainly enough.

[00:35:55] Speaker 05:
The judge here issued a 60-page decision covering three different charges and five specifications in a great deal of detail, and covered it all in the time provided.

[00:36:03] Speaker 06:
So are you acknowledging it's an as-applied challenge, and therefore here as-applied it didn't do it?

[00:36:09] Speaker 06:
I mean, there could be a circumstance, right?

[00:36:10] Speaker 06:
I think there could be a type of case.

[00:36:13] Speaker 00:
Not here.

[00:36:13] Speaker 00:
21, any time you put a restriction on the timing, you're inviting

[00:36:16] Speaker 00:
And as applied challenge.

[00:36:20] Speaker 00:
And your point is that, well, that may be true, but look here, look what happened in 21 days here.

[00:36:25] Speaker 00:
Massive justice is your key, right?

[00:36:29] Speaker 00:
No problem.

[00:36:30] Speaker 05:
In this case, Your Honor, I think that the decision was entirely consistent with all of the requirements of the Fitching Amendment.

[00:36:37] Speaker 00:
What would happen if we looked at what Congress really wanted to do here, and Congress wanted to have this speeded up process.

[00:36:44] Speaker 00:
They wanted the Merit Systems Protection Board to be involved.

[00:36:50] Speaker 00:
They wanted Ms.

[00:36:51] Speaker 00:
Hellman to have a shot, a quick one-time shot at a review in the MSPB, where she could prevail.

[00:37:01] Speaker 00:
Where she could prevail.

[00:37:03] Speaker 05:
In theory.

[00:37:03] Speaker 05:
I mean, now that she's pled guilty to a federal criminal offense, I... No, no, no, no.

[00:37:06] Speaker 00:
That's hypothetical.

[00:37:07] Speaker 00:
Hypothetically, yes.

[00:37:07] Speaker 00:
We're talking about the misalignment of the future.

[00:37:09] Speaker 05:
Yes.

[00:37:09] Speaker 00:
Where she could prevail.

[00:37:10] Speaker 00:
Of course, that would make the agency mad because they wanted to get rid of somebody.

[00:37:14] Speaker 00:
But because they opened up the door to review, they didn't have to.

[00:37:18] Speaker 00:
They could have just made the secretary's decision.

[00:37:20] Speaker 05:
Completely agree.

[00:37:20] Speaker 05:
The House version would have been constitutional.

[00:37:22] Speaker 00:
OK.

[00:37:22] Speaker 00:
So why can't we simply take the AJ out of the action here and do a little rewriting in this statute?

[00:37:31] Speaker 05:
Your Honor, I don't have any more to add than what I said in the answer to the Chief Judge earlier.

[00:37:36] Speaker 00:
Can you tell whether or not the Department would defend us?

[00:37:40] Speaker 05:
Your Honor, it is a... I mean, I don't want to be left high and dry.

[00:37:45] Speaker 05:
I'm not... One difficulty I have is I'm not sure how... You can't speak for the Solicitor General.

[00:37:50] Speaker 05:
That is one thing, of course.

[00:37:52] Speaker 05:
And in addition to that, I don't know what words the Court would be adding.

[00:37:56] Speaker 05:
We do think there are some basic principles of severability law at play here.

[00:38:00] Speaker 05:
And we've given the court our best answer to how we think they ought to apply in these circumstances.

[00:38:05] Speaker 05:
But if I may just circle back to Your Honor's point earlier, if the MSPB has the opportunity to review, you're right, the Secretary of Veterans Affairs might be upset if the MSPB countermanded a removal.

[00:38:16] Speaker 05:
But you would then not have the anomaly.

[00:38:18] Speaker 00:
The reason why I raise that is that it seems to me that the strongest argument that your adversary has here for striking the whole thing down is to say that the Congress did not want a moral level of review.

[00:38:32] Speaker 00:
beyond just an AJ decision.

[00:38:35] Speaker 00:
And the reason why they didn't want that was because they were irritated that a certain number of these employees had gotten off the hook as a result of going to the board.

[00:38:44] Speaker 00:
But that wish is really a false wish, because once you allow the case to go to the AJ, the employee can work.

[00:38:52] Speaker 00:
So the fact that you're going to eat up some more time later on with some more layers of review doesn't really speak

[00:38:59] Speaker 00:
Because the intent of Congress.

[00:39:00] Speaker 05:
Right.

[00:39:00] Speaker 05:
I think you may be correct as to Congress's intent with respect to MSPB review.

[00:39:05] Speaker 05:
But of course, Congress did other very important things in this statute, including authorizing the removal of senior executives for performance and suspending certain other limitations that would apply under Title V. Well, let me just follow up with something.

[00:39:19] Speaker 02:
I think everybody agrees that once you sever what you propose to sever, and then we ask ourselves,

[00:39:29] Speaker 02:
with what's left, would a majority of the House and a majority of the Senate voted to pass that version?

[00:39:38] Speaker 02:
And I think the answer is no, because they would see the problems with the reviewability system that had been created as a result of striking provisions two and three.

[00:39:51] Speaker 02:
And I guess what I'm wondering is,

[00:39:53] Speaker 02:
Why isn't that the right lens to look at it?

[00:39:55] Speaker 02:
If you strike the provisions that are truly unconstitutional, would the House and the Senate, by majority vote, have passed what was looked at?

[00:40:07] Speaker 05:
So I understand the question.

[00:40:09] Speaker 05:
I guess I disagree with part of the premise, which is the standard.

[00:40:11] Speaker 05:
I don't think we ask a sort of legislative horse trading question about whether particular members would or would not have voted and whether you can get to a majority.

[00:40:19] Speaker 05:
What we ask is, as the Supreme Court has said, in any circumstance in which you have severability problems.

[00:40:25] Speaker 05:
By hypothesis, Congress cannot have what it enacted.

[00:40:29] Speaker 05:
So the question is, would it want what is left when the unconstitutional provisions are stricken compared to the status quo ante, what it had before?

[00:40:39] Speaker 05:
And here we know.

[00:40:40] Speaker 05:
We had all of these hearings.

[00:40:41] Speaker 05:
The Congress said, we think the provisions under Title V for the removal of senior executives are insufficient.

[00:40:46] Speaker 05:
They do not give the Secretary of Veterans Affairs

[00:40:49] Speaker 05:
sufficient tools.

[00:40:50] Speaker 05:
They enacted Section 713 as a result.

[00:40:53] Speaker 05:
Portions of Section 713 are undisputedly constitutional here, including the marquee provision in 713A and a number of other provisions that, for example, suspend the normal rule that an employee gets 30 days written notice before removal or that provides that a senior executive can't be removed within 120 days of the appointment of the head of the department.

[00:41:15] Speaker 05:
These are all provisions that, of course, Congress is within its legislative discretion to suspend.

[00:41:19] Speaker 05:
Section 713 suspends them, and there's no constitutional difficulty with them.

[00:41:23] Speaker 05:
So there's no reason why, as a matter of severability analysis, those ought to fall.

[00:41:28] Speaker 02:
Let me ask you another question.

[00:41:30] Speaker 02:
You are proposing to also remove the provision that if the AJ doesn't decide the case within 21 days, the secretary's decision becomes final.

[00:41:41] Speaker 02:
Right.

[00:41:42] Speaker 02:
So now there would be no consequence to the AJ's inability or failure to reach a decision within 21 days.

[00:41:50] Speaker 05:
Well, there would be no consequence.

[00:41:51] Speaker 05:
I didn't mean to interrupt.

[00:41:52] Speaker 02:
So then the question is, does that mean that what would happen under that version of the statute if the AJ, for some reason, said, I can't do this in 21 days, but I'll get back to you in two months?

[00:42:06] Speaker 05:
Your Honor, I would think that would be a matter of disciplining for the board to discipline one of its own attorneys for disregarding a stat.

[00:42:12] Speaker 06:
Well, leaving discipline aside, what happens to the case?

[00:42:14] Speaker 05:
So we think if you strike that provision, it would not have the effect as written now that there's an argument that becomes final and unreviewable with no fault of the employee.

[00:42:26] Speaker 05:
You would still be under a statutory mandate to decide the question within 21 days.

[00:42:30] Speaker 05:
just like many federal employees have statutory and regulatory obligations upon them, which if they do not obey.

[00:42:37] Speaker 02:
Would an AJ meet that 21-day statutory obligation if it said on day 21, I agree with the VA secretary memo to follow in 60 days?

[00:42:50] Speaker 05:
There is such a case right now, as the court may be aware.

[00:42:52] Speaker 05:
It's called the Weiss case, in which an administrative judge did more or less that.

[00:42:59] Speaker 05:
dueling appeals on that question in front of the Merit Systems Protection Board, which has suspended that case pending the outcome of this.

[00:43:05] Speaker 06:
No, but let me ask you, leaving aside whether they can discipline the AJ for not doing it, what happens in a particular case?

[00:43:11] Speaker 06:
When the clock passes, does the MSPB then just, as we would read the statute as severed as you propose, what happens?

[00:43:20] Speaker 05:
I think we would find out, Your Honor.

[00:43:21] Speaker 05:
The government would not, no one would argue that as a result merely of the time passing that the removal of the employee became

[00:43:28] Speaker 05:
final and unreviewable.

[00:43:29] Speaker 05:
That's the provision which would be stricken.

[00:43:32] Speaker 05:
So then there would just be a question which is the court is aware happens in any number of circumstances when there is a statutory deadline that an administrative agency misses and sometimes you have mandamus petitions, sometimes you have

[00:43:43] Speaker 05:
you know, employee discipline, you could have any number of other consequences.

[00:43:47] Speaker 05:
But it would not have the consequence that the statute now sets out for an employee.

[00:43:51] Speaker 06:
Well, do you think the MSPP would or should construe the statute as automatically they get the case on day 22?

[00:43:57] Speaker 05:
I think it may well be within the authority of the board to do that.

[00:44:01] Speaker 05:
I don't want to speak for them on that question.

[00:44:03] Speaker 05:
But I think that might well be within the authority of the board to do.

[00:44:06] Speaker 05:
If I may, just I know I'm running out of time here.

[00:44:09] Speaker 05:
I wanted to refer just briefly to the question that my friend raised on the other side about whether an administrative judge whose decision is completely reviewable, de novo, by the board, would nonetheless be an inferior officer.

[00:44:22] Speaker 05:
The point I just want to stress is that this is not the case to decide that much bigger and more consequential question.

[00:44:28] Speaker 05:
That is the case, as Judge Chen pointed out, that essentially the argument addressed by the DC Circuit in the Landry and Lucia cases

[00:44:37] Speaker 05:
There is a nest of other litigation pending around the country involving it.

[00:44:41] Speaker 06:
Well, why wouldn't we necessarily decide it?

[00:44:43] Speaker 06:
If it's a real issue, it's a live issue.

[00:44:45] Speaker 05:
It is a live issue.

[00:44:47] Speaker 06:
How do we resolve this case without deciding it?

[00:44:49] Speaker 05:
What you do is I think you decide one question at a time.

[00:44:52] Speaker 05:
Ms.

[00:44:53] Speaker 05:
Hellman was removed, and her removal was affirmed by a judge whose decision could not be appealed.

[00:44:59] Speaker 05:
The remedy for that is to give the case to the board for the appeal she was unable to have.

[00:45:03] Speaker 05:
Then if she wants to raise this new question,

[00:45:07] Speaker 05:
which involves many different considerations than the parties have briefed here, and then raise it again on review to this court as a constitutional matter, we can do that in due time.

[00:45:16] Speaker 05:
That would give, among other things, the members of the Merit Systems Protection Board bar an opportunity to opine on a question that would affect the validity of agency proceedings in all Title V removals in all eight ordinary proceedings.

[00:45:30] Speaker 00:
So I hear you talking.

[00:45:30] Speaker 00:
So why shouldn't we just invalidate this whole statute and let Congress worry about all these issues?

[00:45:37] Speaker 00:
I want to get back to a point that the chief judge raised earlier on, which is what are we to make of the bubbling activity in Congress over this statute now that the government took the position that it wasn't going to defend the constitutionality of the finality?

[00:45:57] Speaker 00:
When we're trying to decide whether or not to invalidate an entire statute as opposed to doing a little surgery, are we entitled to take into consideration the posture

[00:46:08] Speaker 00:
of the Congress at this time with regard to the issue.

[00:46:12] Speaker 05:
I think that would be unusual, Your Honor.

[00:46:15] Speaker 00:
I don't want to tell the court it's outside of your... Is there any case law that says we can't?

[00:46:18] Speaker 00:
I mean, I distinguish between a situation where

[00:46:23] Speaker 00:
We were told that, given the posture of this case, that the leaders of the fight before have all acquiesced and said, well, if we strike the statute down, they don't care.

[00:46:34] Speaker 00:
They're not going to make any new legislation.

[00:46:35] Speaker 00:
Let's assume that that was on the record in this case.

[00:46:39] Speaker 00:
That would tell us one thing.

[00:46:40] Speaker 00:
But what we're being told is that they're not one, they're not two, they're not three.

[00:46:43] Speaker 00:
They're like six pieces of legislation in the hopper, right?

[00:46:47] Speaker 05:
Some of which, that is correct.

[00:46:49] Speaker 05:
some of which have gone nowhere, some of which, as the court pointed out earlier, were the proposals of single members, one of which at least has the endorsement of the Department of Veterans Affairs.

[00:46:58] Speaker 00:
But we don't.

[00:46:58] Speaker 00:
What it reflects is it reflects more than just an occasional interest in the subject matter.

[00:47:03] Speaker 05:
I think all this speaks to, Your Honor.

[00:47:05] Speaker 00:
This was a bipartisan issue before, wasn't it?

[00:47:07] Speaker 05:
It is, Your Honor.

[00:47:08] Speaker 05:
But I think we have to be very careful here.

[00:47:11] Speaker 05:
We cannot presume that we know what Congress would enact on this score.

[00:47:14] Speaker 05:
And the possibility that Congress would enact legislation that might moot this case

[00:47:19] Speaker 05:
require some other proceeding is a reason to be cautious about what we decide here and not a reason to do more.

[00:47:26] Speaker 05:
Under accepted severability principles, we strike down only the parts that are problematic and leave the rest and let Congress make a judgment about how to respond to that.

[00:47:35] Speaker 02:
But they've raised the question that there'd still be a constitutional defect under that severed version.

[00:47:40] Speaker 02:
I don't see how we can avoid confronting that question.

[00:47:42] Speaker 05:
Your Honor, I don't see respectfully how the court could decide that right now.

[00:47:46] Speaker 05:
Because just to take, for example, the Lucia case.

[00:47:49] Speaker 05:
The way that a case like that works is if you want to say that the agency's proceedings are unconstitutional because of, as is their argument, the limitations that the board has on review of one of its own employees' decisions, you raise that argument to the agency itself and give the agency an opportunity to address it, to tell us, this court and the public, how it understands its relationship with its employees, and then this court adjudicates the constitutional question in light of that answer.

[00:48:16] Speaker 05:
That's what happened in Lucia versus SEC.

[00:48:19] Speaker 05:
It is premature here to reach the question.

[00:48:22] Speaker 05:
They have not lost the opportunity to raise it.

[00:48:25] Speaker 05:
What we do, we respectfully suggest, is decide the question that's in front of you.

[00:48:29] Speaker 05:
They were unable to raise that question with the board because the statute precluded them from getting an appeal to the board.

[00:48:36] Speaker 05:
Send it back for an appeal to the board.

[00:48:38] Speaker 05:
If they want to raise it then, great.

[00:48:39] Speaker 05:
If Congress enacts intervening legislation, great.

[00:48:42] Speaker 05:
These are all questions that we can decide in due time.

[00:48:46] Speaker 05:
There is no reason for the court to reach out and decide a question that is really not briefed.

[00:48:50] Speaker 02:
One last quick question from me.

[00:48:52] Speaker 02:
Is it true that when an AJ issues an opinion and then

[00:48:57] Speaker 02:
the MSPB doesn't pick it up on its own, or there's no request for review to the MSPB, then the AJ's decision just automatically becomes final without the issuance of some additional order from the board itself.

[00:49:12] Speaker 05:
That is my understanding about how the statute works under 7701 and 7703 of Title V, Your Honor.

[00:49:18] Speaker 05:
Yes, let me say just two things about that.

[00:49:21] Speaker 05:
First, of course, as I think Your Honor just diverted to,

[00:49:24] Speaker 05:
The Merit System Protection Board can and does, sua sponte, review decisions of administrative judges that no party has appealed.

[00:49:32] Speaker 05:
That underscores that the decision is of the board and not one of the administrative judge.

[00:49:37] Speaker 05:
Second, as Judge Prost pointed out, of course, people are entitled to not appeal adverse decisions against them.

[00:49:43] Speaker 05:
And there ought not be, effectively, a waiver.

[00:49:46] Speaker 05:
And we ought not be drawing constitutional consequences from those private choices.

[00:49:50] Speaker 05:
And third, I said two things.

[00:49:51] Speaker 05:
There were actually three.

[00:49:54] Speaker 05:
Third, that is exactly the sort of question that is not briefed in this case, that underscores the reasons why the court ought to send it back.

[00:50:05] Speaker 05:
And if the petitioner wants to raise that question and come up with an appeal where everybody briefs that very significant question in due course, that would be the prudent outcome.

[00:50:14] Speaker 05:
It is not appropriate, we submit, to decide that much bigger question here.

[00:50:18] Speaker 06:
Thank you.

[00:50:21] Speaker 06:
Mr. Morley.

[00:50:30] Speaker 04:
May it please the court.

[00:50:31] Speaker 04:
My name is Michael Morley.

[00:50:32] Speaker 04:
I represent the military and veterans group interveners.

[00:50:37] Speaker 04:
After listening to the oral argument to this point, I'd like to emphasize to the court this is not a severability case.

[00:50:45] Speaker 04:
The crux of the alleged appointments clause problem, and as we explain in our briefs, there actually isn't an appointments clause problem.

[00:50:53] Speaker 04:
But the crux of the alleged appointments clause problem that the government and Ms.

[00:50:57] Speaker 04:
Hellman contends exists is that

[00:51:00] Speaker 04:
A government official was given certain powers, enough powers to render him an officer of the United States, but he wasn't appointed in the correct manner.

[00:51:10] Speaker 04:
Whenever we see cases of this structure in the Supreme Court, in the DC Circuit, in the Ninth Circuit, whenever we see cases of this structure, the remedy is not to invalidate the powers that make the official an officer of the United States.

[00:51:26] Speaker 04:
The remedy has been fix the Appointments Clause problem

[00:51:30] Speaker 04:
fix the problem with removal by addressing those legal provisions.

[00:51:34] Speaker 04:
Here, we have a federal statute that was recently enacted, not even- So what process exactly are you advocating?

[00:51:43] Speaker 06:
That we, as a court of review, sua sponte, tell the government that they should redo, non protunque, the appointment of these individuals?

[00:51:55] Speaker 04:
Whether the court chooses to order the government to do that, the constitutional defect here lies in the method of appointment.

[00:52:02] Speaker 04:
The constitutional defect isn't the fact that Congress gave administrative judges.

[00:52:07] Speaker 06:
But if we're left with the constitutional defect and we have to decide Miss Hellman's case and what happens to Miss Hellman, what do we do with that?

[00:52:16] Speaker 06:
What's step two?

[00:52:17] Speaker 04:
So the defect, Your Honor, would be in the mode of appointment.

[00:52:21] Speaker 04:
So if this court invalidates the delegation of authority to hire administrative judges, it can then remand this case.

[00:52:28] Speaker 04:
And as we've seen in other cases where courts have found appointments clause problems with the appointments of ALJs, the courts have held that those problems have been cured if the newly appointed person is given the opportunity to ratify their previous decision.

[00:52:45] Speaker 04:
So if this court were to hold that the appointment of administrative judges is unconstitutional, the method of their appointment is unconstitutional, it could then remand this case so that a properly appointed administrative judge, whether it be judge... But we can't force them to act.

[00:53:01] Speaker 06:
Well, you know, there's a lot going on with the transition.

[00:53:04] Speaker 06:
It might be months.

[00:53:05] Speaker 06:
What if they don't act?

[00:53:06] Speaker 06:
I mean, we can't force them to act.

[00:53:08] Speaker 06:
Do you agree with that?

[00:53:09] Speaker 06:
We can't tell them to do something.

[00:53:10] Speaker 06:
We could just remand it so they would have an opportunity to do something.

[00:53:13] Speaker 06:
Correct, Your Honor.

[00:53:14] Speaker 06:
So what if they don't act?

[00:53:15] Speaker 06:
I mean, how long do we wait?

[00:53:17] Speaker 06:
Six months goes by and nothing happens.

[00:53:19] Speaker 06:
What happens to Ms.

[00:53:20] Speaker 06:
Hellman's case?

[00:53:21] Speaker 04:
If the government chooses not to make available constitutionally

[00:53:27] Speaker 04:
appointed administrative judges, Ms.

[00:53:29] Speaker 04:
Hellman would likely have a mandamus issue, Ms.

[00:53:33] Speaker 04:
Hellman might have a due process issue, if the government flatly refuses to appoint a- Well, the government does nothing.

[00:53:38] Speaker 06:
That's usually what happens.

[00:53:40] Speaker 06:
I mean, the government does nothing.

[00:53:41] Speaker 06:
We send it back.

[00:53:42] Speaker 06:
We say, you've got to do something.

[00:53:44] Speaker 06:
Does she wait until some magic time under mandamus where it seems reasonable for her to go and complain to us that we've got to force them to act?

[00:53:53] Speaker 06:
And then if there's a mandamus petition, are we in a position of forcing them to change the status of these offices or just forcing them to tell us whether they're going to do that or not?

[00:54:05] Speaker 06:
I don't understand how this plays out as a practical matter.

[00:54:08] Speaker 04:
Again, if this court were to invalidate the delegation of higher authority, the MSPB would have the power, which it currently has, to hire administrative judges itself.

[00:54:19] Speaker 06:
Doesn't she win?

[00:54:21] Speaker 06:
But if we invalidate what happened here, doesn't she automatically prevail?

[00:54:26] Speaker 06:
At least her case, her prospect of making a change in other cases.

[00:54:30] Speaker 06:
But her case is done, right?

[00:54:32] Speaker 04:
If this court looks at Appointments Clause precedent, such as FEC versus Legitech out of the DC Circuit, that hasn't been how other courts have addressed this issue.

[00:54:42] Speaker 04:
Where there have been Appointments Clause defects and those defects were corrected, the government agencies or the government officers were then given an opportunity to review and to ratify the decisions that they previously took while they had a defect in their appointment.

[00:54:57] Speaker 04:
None of these cases presented the situation where the government

[00:55:01] Speaker 04:
obstinately refused to appoint someone in a constitutionally valid manner.

[00:55:06] Speaker 04:
Indeed, it would be remarkable if the government refused to do in a constitutional manner that which it has already done through a delegation of authority.

[00:55:15] Speaker 02:
Can I just stop you for a second?

[00:55:18] Speaker 02:
Is what you're arguing right now premised on whether we conclude that an AJ is an inferior officer?

[00:55:27] Speaker 02:
Or is your argument premised on

[00:55:30] Speaker 02:
whether we conclude that the AJ under 17E2 is in fact operating as a principal officer.

[00:55:38] Speaker 02:
I'm a little confused as to where you're coming from right now.

[00:55:41] Speaker 04:
If this court were to conclude that the administrative judge is an inferior officer, then the constitutional defect here would simply be that the merit systems, if there is any, which again, as we explained in our brief, there isn't.

[00:55:52] Speaker 04:
But the constitutional defect would either be that the MSPB itself

[00:55:56] Speaker 04:
didn't directly hire him or didn't ratify his hiring.

[00:56:00] Speaker 02:
So you're suggesting we remand it back and then have the MSPB itself appoint the AJ and all the AJs and then somehow ratify everything that the AJs have been doing.

[00:56:13] Speaker 02:
So for the past five minutes, you've been talking about that particular question.

[00:56:17] Speaker 02:
Am I understanding that?

[00:56:18] Speaker 02:
Yes, Your Honor.

[00:56:19] Speaker 00:
All right.

[00:56:20] Speaker 00:
Coming back to what the Chief Judge was asking you,

[00:56:24] Speaker 00:
The MSPB appoints its AJs or fines its AJs and puts them in place for reasons that it knows that we don't know.

[00:56:34] Speaker 00:
I mean, they get AJs from other agencies, so they have a process.

[00:56:38] Speaker 00:
They've got a lot of AJs.

[00:56:40] Speaker 00:
And are you suggesting that we order the MSPB to change the way it fines its AJs in all of its cases?

[00:56:48] Speaker 00:
Or should it be a particular rule just for these appeals?

[00:56:52] Speaker 04:
This court doesn't have to order the MSPB to do anything.

[00:56:56] Speaker 04:
If this court believes an appointments clause problem exists, it has two possible solutions.

[00:57:01] Speaker 04:
It can either invalidate the statute that gave these officers, that gave these officials enough power to become officers, or it could invalidate the defect in their appointment, the delegation of authority from the MSPB down to the bureaucracy to hire administrative judges.

[00:57:17] Speaker 00:
That was a defect in their appointment only in consideration with this case.

[00:57:22] Speaker 00:
Nobody is arguing that there is a defect in the way they're appointed for the garden variety of cases that come in front, right?

[00:57:29] Speaker 04:
Well, Your Honor, the statute at issue here purports to give all administrative judges within the MSPB the authority to make final decisions regarding SES appeals.

[00:57:39] Speaker 00:
Yeah, but it's the one AJ that gets assigned to the case.

[00:57:43] Speaker 00:
that creates the problem.

[00:57:45] Speaker 00:
If, for example, in this particular case, the board had said to itself, we're going to ask the chairman of the board, who has to be sitting in this audience today, we're going to ask her to hear this appeal as an agent, she could have done that under their rules.

[00:58:03] Speaker 00:
And there wouldn't have been an appointments clause problem.

[00:58:05] Speaker 04:
Correct, Your Honor.

[00:58:07] Speaker 04:
With regard to the other administrative law judges, though,

[00:58:09] Speaker 04:
they still are given power that Ms.

[00:58:13] Speaker 00:
Hellman- I'm saying that the unconstitutional power is only peculiar to these handful of cases that are going to come up under 713.

[00:58:21] Speaker 00:
Exactly, which is one of the reasons, Your Honor, we argue this statute doesn't actually- That's what I was trying to get at is what's the scalpel look like when we go tell the MSPB that it's been appointing its AJs the wrong way?

[00:58:35] Speaker 00:
Do we tell them you're going to appoint all your AJs forever, or you're just going to say, whichever AJ we pick, we're going to pick one each time these cases come.

[00:58:45] Speaker 00:
And they go to the board, and then they go back to the AJ.

[00:58:47] Speaker 00:
The board could say, OK, we're going to appoint you.

[00:58:53] Speaker 00:
That's all they have to do.

[00:58:54] Speaker 00:
So I'm trying to tailor down what size of the cut you have to make with your scalpel to make your provision work.

[00:59:04] Speaker 04:
We would certainly believe that that would be a constitutionally sufficient outcome.

[00:59:08] Speaker 04:
On the other hand, again, this court doesn't actually need to order the MSPB to do anything.

[00:59:15] Speaker 04:
Once the court determines an appointments clause problems exists, if the court comes to that conclusion,

[00:59:20] Speaker 00:
we could tell the world that we're just going to sit on this case for four or five minutes.

[00:59:26] Speaker 00:
And the Embarrassed System Protection Board could go back and take this particular AJ and appoint that AJ and themselves in a note-and-protein quitter.

[00:59:36] Speaker 00:
That AJ could then ratify what they did before, and your deal would all be fined.

[00:59:41] Speaker 04:
That's exactly correct, Your Honor.

[00:59:42] Speaker 04:
And that's exactly what we saw in FEC versus Legitech.

[00:59:45] Speaker 00:
where after the Appointments Clause- So are you suggesting that we solve the constitutional problem here by sitting on our hands for a few months, in the light of what I just said?

[00:59:54] Speaker 00:
To see if the board will go cure the problem for us?

[00:59:57] Speaker 04:
No, the court doesn't need to delay.

[00:59:59] Speaker 04:
Even if the court were to issue a ruling finding that an Appointments Clause problem exists, if this court looks to Legitech, if the court looks to CFPB versus Gordon, the Ninth Circuit's ruling, if the court looks at the DC Circuit's ruling in the CFPB case,

[01:00:13] Speaker 04:
Whenever we have a problem where a government official has certain powers that trigger employment-related provisions of the Constitution, the court has never responded by striking down those powers.

[01:00:25] Speaker 06:
We're supposed to remand it.

[01:00:27] Speaker 06:
You say we should vacate and remand?

[01:00:30] Speaker 06:
Just technically.

[01:00:31] Speaker 06:
If we've got to write an opinion, we've got to know what we're doing here.

[01:00:33] Speaker 06:
You're saying we should vacate the decision and remand it.

[01:00:37] Speaker 06:
The MSPB didn't do anything here.

[01:00:40] Speaker 06:
Wouldn't the remand necessarily, unless and until we rewrite the statute, the remand would have to be to the AJ, right?

[01:00:47] Speaker 06:
That's the opinion we have.

[01:00:49] Speaker 04:
Ms.

[01:00:49] Speaker 04:
Hellman did appeal from the AJ's decision to the MSPB.

[01:00:53] Speaker 04:
The MSPB issued a one-page order refusing to hear the appeal, and then this appeal was taken from that order.

[01:00:59] Speaker 00:
Was that ever issued by the MSPB or by the Secretary of the Board?

[01:01:03] Speaker 04:
I would have to review the record, Your Honor, but the order itself is included in the documentary appendix.

[01:01:12] Speaker 06:
Until we rewrite the statute, I mean if we just kind of vacate

[01:01:17] Speaker 06:
Where does the MSPB get in?

[01:01:19] Speaker 06:
Where do we have the authority to remand it?

[01:01:22] Speaker 04:
You're exactly right, Your Honor.

[01:01:24] Speaker 04:
This court shouldn't be in the business of rewriting the statute.

[01:01:27] Speaker 04:
There's no need to rewrite the statute.

[01:01:28] Speaker 06:
OK, so where do we get the authority to remand it to the board versus remanding it, I don't know, to the AJ, back to the Secretary of Veterans Affairs?

[01:01:37] Speaker 04:
Well, as counsel has discussed in response to previous questions, the decision of the administrative judge is deemed the decision of the board, becomes the decision of the board,

[01:01:47] Speaker 04:
And so the AJ's ruling is the final agency action for purposes of this case.

[01:01:54] Speaker 00:
Under 7-1-3?

[01:01:55] Speaker 00:
Yes, Your Honor.

[01:01:59] Speaker 00:
Under 7-1-3, that's the finality problem.

[01:02:02] Speaker 00:
The AJ's decision is final.

[01:02:05] Speaker 00:
Game is over.

[01:02:07] Speaker 00:
Yes, Your Honor.

[01:02:09] Speaker 00:
And so if there is an appointments clause problem with that, which you think there's not, but let's assume we think there is one, then we've got to get rid of that.

[01:02:22] Speaker 04:
Rather than striking down a recently enacted congressional statute that responds to compelling policy problems, the appointments clause problem could just as easily be eliminated

[01:02:34] Speaker 04:
simply by invalidating the internal administrative delegation of authority to hire these judges.

[01:02:41] Speaker 04:
Comparing the court's role... Do we have the authority to do that?

[01:02:45] Speaker 06:
We can, sitting here on review, invalidate the procedures that they use for appointing the AJA?

[01:02:51] Speaker 04:
That's far less intrusive of other branches than invalidating a duly enacted congressional statute, Your Honor.

[01:02:56] Speaker 02:
If we were to conclude that 17-713-E2

[01:03:01] Speaker 02:
makes the AJ a principal officer, not an inferior officer, then we just can't have the MSPB itself kind of no-pro-tunk appointing the AJ, right?

[01:03:14] Speaker 03:
That's correct, Your Honor.

[01:03:16] Speaker 02:
So then where are we?

[01:03:20] Speaker 04:
Under Morrison and Freytag, Your Honor,

[01:03:23] Speaker 04:
Even if there is an appointments clause problem here, at most administrative judges must be considered inferior officers.

[01:03:30] Speaker 02:
But what if we conclude that when they are operating under the authority of 713E2, they are acting as principal officers?

[01:03:40] Speaker 04:
Yes, Your Honor.

[01:03:41] Speaker 04:
If this court concludes,

[01:03:43] Speaker 04:
that these are principal officers of parallel to the Attorney General and the Secretary of State who have to be appointed by the President and confirmed by the Senate, then there's nothing that the MSPB itself could do to rectify the problem.

[01:03:56] Speaker 02:
So your proposal of the remand doesn't make sense.

[01:03:58] Speaker 04:
If this Court concludes that they are principal officers.

[01:04:04] Speaker 04:
In looking at the Supreme Court's recent PCAOB ruling, the Court expressly told us where officials

[01:04:12] Speaker 04:
were exercising executive authority, but were protected by too many layers of protection from removal.

[01:04:19] Speaker 04:
The Supreme Court expressly said, we could solve this problem by blue lining the statute, which is the exact language they use.

[01:04:26] Speaker 04:
We could solve this problem by removing authority from the PCAOB so that we don't have an Article II issue.

[01:04:34] Speaker 04:
But instead, the court said, we're going to remedy the constitutional defect

[01:04:38] Speaker 04:
simply by removing the true cause of it, which isn't the statutory delegation of powers to them, but rather the protections from removal.

[01:04:47] Speaker 06:
Can I just ask you, and I'm sorry to use up the rest of your time, but quickly, if you could tell us if you have a view on the question we've been raising with your friends here, which is that if we feel like judicial review is not necessary, and we're going to go the severability right, which I understand your objections to,

[01:05:07] Speaker 06:
Would we necessarily have to wipe out both review of the MSPB and the judiciary, or should we just slice and dice it so that we get rid of the, I'm sorry, so we put back the MSPB, but we don't restore the authority?

[01:05:22] Speaker 04:
The narrowest solution is what the Supreme Court President, Alaska Airlines, Buckley v. Vallejo itself, advocates in favor of.

[01:05:30] Speaker 04:
There are provisions of the statute, in particular the Section A, which empowers the Secretary

[01:05:36] Speaker 04:
to terminate senior employees for misconduct, which gives him new authority that he previously lacked.

[01:05:42] Speaker 04:
The alleged defects with the administrative judge's authority here have nothing to do with that new source of authority.

[01:05:50] Speaker 04:
And there's absolutely nothing in the legislative history to suggest that even if Congress had not been permitted to give administrative judges this new expedited appellate authority, that they wouldn't have wanted

[01:06:01] Speaker 04:
that they wouldn't have wanted the secretary to retain this authority.

[01:06:05] Speaker 04:
So under traditional severability principles, certainly Section A and many other sections of the statute, other than those directly touching on the administrative judges, would survive.

[01:06:15] Speaker 06:
Thank you.

[01:06:15] Speaker 04:
Thank you very much.

[01:06:17] Speaker 06:
So we've gone over.

[01:06:18] Speaker 06:
You had something like two minutes left.

[01:06:20] Speaker 06:
Why don't you give a total of six minutes if you need it on rebuttal?

[01:06:23] Speaker 06:
Because we've gone over with the other side.

[01:06:25] Speaker ?:
Thank you.

[01:06:29] Speaker 07:
There's one big point that I would like to make on my rebuttal time here.

[01:06:34] Speaker 07:
And that's our proposal to invalidate the statute entirely is the only way that the court can avoid significant constitutional questions that would remain.

[01:06:44] Speaker 07:
And that would still leave in place the Title V procedures.

[01:06:48] Speaker 07:
Under those procedures, when an individual is removed, the board itself can opt to hear an appeal from that removal decision, which, as the court has acknowledged,

[01:06:57] Speaker 07:
would cure any appointments clause problem.

[01:07:00] Speaker 07:
So there's no need to decide in this case, at least until the MSPB has had the opportunity to determine.

[01:07:07] Speaker 01:
The government said it would be premature to address this issue of whether an AJ is an inferior officer.

[01:07:14] Speaker 01:
What do you have to say about that?

[01:07:15] Speaker 07:
The government said it would be premature to address it now, but it acknowledged that this issue, if remanded under its severance proposal, would percolate back up to this court.

[01:07:26] Speaker 07:
If section 713 is invalidated entirely, that would leave the secretary to proceed under Title V procedures.

[01:07:32] Speaker 00:
Can I just stop you for a second?

[01:07:33] Speaker 00:
When you say entirely, why do we have to get rid of A?

[01:07:37] Speaker 07:
If only subsection A is left, Your Honor, that would not allow for any post-termination review whatsoever.

[01:07:45] Speaker 07:
Subsection A just gives the secretary authority to remove the individual.

[01:07:49] Speaker 00:
Don't SES officials have any line of review?

[01:07:54] Speaker 07:
No, the review for the decision under subsection A comes later in the statute.

[01:07:59] Speaker 00:
But under Title V, let's assume that all that's happened here is that we keep A, A-1.

[01:08:06] Speaker 00:
Secretary can get rid of an SES person for performance or misconduct.

[01:08:11] Speaker 00:
Won't that SES official have a Title V review, right?

[01:08:19] Speaker 00:
The subsection

[01:08:21] Speaker 00:
I'm just saying, let's assume we invalidate the entire statute.

[01:08:25] Speaker 00:
But as the intervener was suggesting, you preserve A. Yes.

[01:08:29] Speaker 07:
There's no avenue for that decision under subsection A to get to the MSPB.

[01:08:37] Speaker 07:
Subsection D of 7.

[01:08:38] Speaker 00:
It doesn't Title V say that an SES employee who's removed has access to the board?

[01:08:46] Speaker 07:
Section 7701 says that an employee or applicant for employment may submit an appeal

[01:08:51] Speaker 07:
to the Merit Systems Protection Board from any action which is appealable to the board under any law, rule, or regulation.

[01:08:57] Speaker 07:
There's no law, rule, or regulation that makes a decision under Section 713A appealable to the board, except for what is elsewhere provided in Section 713.

[01:09:10] Speaker 07:
So if all that remains is Section A, there's no avenue to get to that MSPB, no avenue for judicial review, and that would violate due process.

[01:09:17] Speaker 00:
That would violate due process?

[01:09:20] Speaker 07:
Yes, Your Honor, an employee is entitled to pre-termination process and post-termination process.

[01:09:25] Speaker 00:
So if there's no... What case says you're entitled to post-termination process?

[01:09:30] Speaker 00:
Loudermill.

[01:09:31] Speaker 00:
Loudermill says pre-termination.

[01:09:33] Speaker 07:
I believe Loudermill says that due process as a whole is looked at as sort of a balancing.

[01:09:38] Speaker 07:
If you get a lot of pre-termination process, you don't need as much post-termination.

[01:09:42] Speaker 07:
If you don't get that much pre-termination, you'll need a lot of post-termination process to satisfy due process.

[01:09:48] Speaker 07:
And simply getting rid of it here, as everyone's acknowledged, Section 713A would expedite the initial front-end procedures as well.

[01:09:58] Speaker 07:
And so that would not leave enough post-termination process to satisfy due process to satisfy Laudermill.

[01:10:08] Speaker 07:
But back to my point, if Title V, if the VA proceeds under Title V, the MSPB would have the opportunity to designate a board member

[01:10:17] Speaker 07:
to hear the case or to hear the case itself in the first instance.

[01:10:21] Speaker 07:
And that would get rid of all these other constitutional problems that have been discussed that are percolating through the courts in other administrative contexts.

[01:10:30] Speaker 07:
And so we would ask the court to invalidate section 713 entirely as a matter of statutory construction, to find that it's non-several, to vacate the decision of the administrative judge into remand.

[01:10:43] Speaker 00:
But wait, you vacated and remand.

[01:10:46] Speaker 00:
What happens?

[01:10:48] Speaker 00:
I mean, there was originally an appeal by your client from the original action, right?

[01:10:56] Speaker 00:
There was an appeal to the board, and then that was removed so that once the statute came into place, the appeal came there.

[01:11:03] Speaker 00:
So what's the status of your client if we say that the entire statute falls

[01:11:08] Speaker 07:
If the entire statute falls, then the MSPB would vacate the decision of the secretary, and it would be returned to the secretary.

[01:11:15] Speaker 07:
That's what would happen on remand.

[01:11:17] Speaker 06:
And would the secretary's decision hold?

[01:11:20] Speaker 07:
The secretary would presumably make a new decision about whether to proceed under Title V. Why would the MSPB vacate the decision of the secretary?

[01:11:30] Speaker 07:
Because the decision of the secretary was made under subsection A of the statute.

[01:11:35] Speaker 07:
And if section 713 is invalidated entirely,

[01:11:38] Speaker 07:
than that decision.

[01:11:39] Speaker 06:
So the person, Ms.

[01:11:40] Speaker 06:
Hellman, could not be removed for poor performance any longer?

[01:11:44] Speaker 07:
She could be removed for misconduct under Title V. No, but for poor performance.

[01:11:49] Speaker 07:
She could be removed from the senior executive service and placed on the general schedule.

[01:11:52] Speaker 00:
Which was the original proposal?

[01:11:54] Speaker 07:
I'm sorry, you're on?

[01:11:55] Speaker 00:
The original removal proposal was under Title V.

[01:11:59] Speaker 07:
The original removal proposal was under Title V, yes.

[01:12:01] Speaker 01:
But she was removed here for misconduct, not performance.

[01:12:06] Speaker 07:
Yes.

[01:12:06] Speaker 07:
And the secretary would be entitled to remove her from misconduct or propose removing her from misconduct under Title V if the decision is vacated entirely.

[01:12:18] Speaker 06:
Thank you.

[01:12:19] Speaker 06:
Thank you very much.

[01:12:19] Speaker 06:
I thank all parties and cases submitted.